Carson v. Verismart Software, Inc. et al
Filing
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Order by Magistrate Judge Donna M. Ryu denying 127 Plaintiff's Motion for Sanctions.(dmrlc1, COURT STAFF) (Filed on 8/24/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
United States District Court
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FLETCHER CARSON,
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Plaintiff,
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No. C 11-03766 DMR
ORDER DENYING PLAINTIFF’S
MOTION FOR A FINDING OF
CONTEMPT OF COURT BY
DEFENDANT RAFF
v.
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VERISMART SOFTWARE, et al.,
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Defendants.
___________________________________/
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This matter comes before the court on pro se Plaintiff Fletcher Carson’s Motion to Request a
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Finding of Contempt of Court by Defendant Raff and His Legal Counsel and Imposition of
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Sanctions (“Motion for Contempt”). [Docket No. 127.] The court conducted a hearing on August
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23, 2012, during which the parties were given an opportunity to present oral argument. For the
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reasons below, the court hereby DENIES Plaintiff’s Motion for Contempt.
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I. Background
On June 1, 2012, the parties participated in a settlement conference before the undersigned
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that resulted in a settlement agreement between Plaintiff and all defendants, including Defendant
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Carl Raff. [Docket No. 120 (Civil Conference Minute Order, June 1, 2012); Honea Decl. ¶ 2.] At
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the conclusion of the conference, the parties placed the material terms of the confidential agreement
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on the court’s recording system. Although the parties entered into a binding and enforceable
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contract on the record, they also indicated that they intended to reduce the terms to writing. The
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parties gave the undersigned full and binding authority to resolve any drafting disputes. The parties
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also requested that the case be reassigned to the undersigned for all purposes. The court entered an
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Order Re Sealed Transcript, requiring that any transcript of the settlement proceeding be filed and
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maintained under seal. [Docket No. 121.] The court did not enter any other orders regarding the
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settlement agreement.
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Plaintiff Carson now moves for a finding of contempt of court by Defendant Raff and his
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attorneys based on Raff’s alleged failure to comply with the terms of the settlement agreement.
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Specifically, Plaintiff requests the court find Raff and his attorneys in contempt for “willful,
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premeditated, and continuing refusal to comply with an order of this court contained in a sealed
transcript of the Settlement Conference” held by the parties on June 1, 2012. Plaintiff also requests
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For the Northern District of California
United States District Court
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sanctions. (Pl.’s Mot. 3.)
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II. Discussion
To obtain a civil contempt citation, the moving party must show by clear and convincing
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evidence that the opposing party violated a specific and definite order of the court. See In re
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Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993). If the
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moving party makes the clear and convincing showing, the burden shifts to the party allegedly in
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contempt to show that it cannot comply. See U.S. v. Montgomery Global Advisors, No. C04-00733
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EDL, 2005 WL 2249092, at *2 (N.D. Cal. Aug. 1, 2005).
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Here, Plaintiff has not shown that Raff and his attorneys “violated a specific and definite
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order of the court,” because the court did not enter an order directing Raff or any other party to
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comply with the terms of the settlement agreement. Plaintiff argues that “[s]ince this court was
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provided with binding authority to decide upon any language disagreements between the parties in
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drafting an acceptable Settlement Agreement, this court ordered Defendant Raff to perform as
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outlined” on the record by June 30, 2012. (Pl.’s Mot. 3.) However, the court did not order any of
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the parties to perform. Neither the agreement of the parties to have the court resolve any drafting
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disputes nor the placement of the terms of the settlement agreement on the record resulted in a court
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order to comply with the terms of the parties’ agreement. While Raff’s alleged failure to comply
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with the terms of the settlement agreement may be enforced as a breach of that agreement, there was
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no court order requiring Raff or his counsel to do anything. Accordingly, as Plaintiff cannot show
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that Raff violated a “specific and definite order of the court,” his Motion for Contempt is denied.
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Dated: August 24, 2012
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RT
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For the Northern District of California
United States District Court
ER
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LI
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DONNA M. RYU
M. Ryu
Donna
United States dge
Ju Magistrate Judge
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D
RDERE
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IT IS S
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IT IS SO ORDERED.
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